Ex Parte Rice

• Decision Date: 18 June 1913
• Parties: Ex parte RICE.
• Court: Texas Court of Criminal Appeals

162 S.W. 891

Ex parte RICE.

Court of Criminal Appeals of Texas.

June 18, 1913.

On Motion for Rehearing, June 27, 1913, and January 21, 1914.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Ex parte petition by D. R. Rice for a writ of habeas corpus. From a judgment denying the writ, relator appeals. Reversed, and relator ordered discharged.

Collins & Cummings, of Hillsboro, and W. F. Ramsey, of Austin, for appellant.

On the 25th day of May, 1913, the relator sued out a writ of habeas corpus before the district court of Tarrant county, and upon a hearing of the same, on the 27th day of May, 1913, the relator was remanded by said court to the custody of the sheriff of Tarrant county, and he thereupon excepted to the action of the court in so remanding him and gave notice of appeal to this honorable court. The ruling of the trial court was based, according to his statement from the bench, upon a remarkable contention made by the state, and that was that, in the event the relator should be discharged by him, the state could not appeal; but, if he should remand the prisoner, the prisoner could procure a decision from the court, and the court, when he rendered such decision, stated from the bench that it was rendered against his judgment, and that he was sure he would be reversed by this court and that such was his desire.

On the hearing of the writ, the court announced from the bench that he would not permit the introduction of any testimony, either in behalf of the relator or the state, except the original pardon and the pretended revocation of the same, and these two instruments comprise, in its entirety, the statement of facts. He further announced that either side might offer any testimony which they desired to offer and he would exclude the same and approve a bill of exception embodying it. The relator, availing himself of this permission from the court, presented two bills of exception; the first embodying the testimony of Walter Collins and B. Y. Cummings, stating the circumstances under which pardon in this case was procured, and the second bill of exceptions embodying the recommendation of the Board of Pardons, recommending the pardon, together with the exhibits annexed thereto and made a part of said recommendation, said exhibits consisting of a letter addressed by Dr. E. B. Osborne, of Cleburne, Tex., to the Governor, and a letter from Judge W. F. Ramsey to the Governor, both urging the pardon of the relator. These bills of exception appear in the record, and the testimony incorporated in them would have been produced before the court if it had been permitted.

The state, or, speaking more accurately, the hired prosecutor, availing himself of the offer of the court, has incorporated in the record certain affidavits from relatives of the deceased and citizens of the community wherein the crime was alleged to have been committed, to the effect and to the effect only, that they did not know that an application for pardon was pending until after pardon had been granted; that, if they had known it, they would have protested against the granting of same; and that they, and the people generally, in that community, believed the relator to be guilty. We have not had sufficient time yet, and as the years are rapidly creeping on us, and as "life is short and time is fleeting," we fear we shall never have time to ascertain the purpose of the state's bill of exception, because in it nowhere appears a suggestion that any misrepresentation was made to the Governor concerning the attitude of these people, or a suggestion that fraud or concealment was practiced, or a suggestion that any condition of the pardon had been violated. The record prepared by the state fails to include any word from the Governor that he was imposed upon, and the hired prosecutor was challenged on the hearing of the writ, and again when the record was agreed to and approved, and is now for the third time challenged to procure an affidavit from the Governor to the effect that any material fact was concealed or misrepresented in the procurement of the pardon. On the other hand, the record does contain a bill of exception in which is incorporated an affidavit made by Walter Collins and B. Y. Cummings, to the effect that the original statement of facts, made up and filed in the cause wherein the relator was convicted of murder, was carried by them to Austin, placed before the Board of Pardons and before the Governor, and that the Governor stated to them that it was too voluminous to read, and that they could carry it back home with them, which they did. The record also discloses a bill of exception in which is incorporated a copy of a letter, the original of which is now on file in the office of the Secretary of State, indicted by Judge W. F. Ramsey to his excellency, Gov. O. B. Colquitt, in which the attitude of the daughters of the relator and the deceased and the members of the family of the deceased is clearly set forth, and, if their attitude is to be the determining factor in this case, the state must, if it maintains that the Governor was ignorant of such attitude, say that he refused to read the letter written by Judge Ramsey.

First Proposition: Section 11 of article 4 of the state Constitution confers upon the Governor in all cases, except treason and impeachment, power, after conviction, to grant reprieves, commutations of punishment and pardons, and this power includes the power to grant a conditional pardon, provided the condition annexed to the same is neither illegal, immoral, or impossible of performance.

Statement: The Governor granted the relator a pardon conditioned that he should not thereafter violate any of the criminal laws of the state of Texas.

Authorities: Article 4, § 11, State Constitution; Carr v. State, 19 Tex. App. 635, 53 Am. Rep. 395; Snodgrass v. State, 150 S. W. 162, 178, 41 L. R. A. (N. S.) 1144; Ex parte Wells, 18 How. 307, 15 L. Ed. 421; U. S. v. Wilson, 17 Pet. 150, 8 L. Ed. 640; State ex rel. Davis v. Hunter, 124 Iowa, 569, 100 N. W. 510, 104 Am. St. Rep. 361; Arthur v. Craig, 48 Iowa, 264, 30 Am. Rep. 395; 24 Am. & Eng. Ency. of Law, p. 566.

Second Proposition: Since the Constitution of the state casts the power to grant pardons upon the Governor, it cannot be exercised by any other agency of the government.

Authorities: Article 4, § 11, State Constitution; article 2, § 1, State Constitution; Snodgrass v. State, 150 S. W. 162, 178, 41 L. R. A. (N. S.) 1144; Martin v. State, 21 Tex. App. 2, 17 S. W. 430; State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600; Easterwood v. State, 34 Tex. Cr. R. 400, 31 S. W. 294; People v. Moore, 62 Mich. 497, 29 N. W. 80.

Remarks: We believe that the rule cannot be stated more concisely than is done in the American & English Encyclopedia of Law, vol. 44, p. 557, and from that we copy as follows: "Since it is a principle of constitutional law that each of the great departments of the government, viz., the executive, legislative, and the judicial, shall in its sphere be supreme and independent of the others, and that a grant of general powers to one department constitutes an implied exclusion of the other departments from the exercise of those powers, it is the prevailing weight of judicial opinion that a grant of the pardoning power by the Constitution upon the executive department, of either state or federal government, precludes the legislative department of that government from exercising or controlling that power. In other words, that the pardoning power is solely an executive function and cannot be exercised, limited, or impaired by the Legislature."

Third Proposition: The act of the Thirty-Second Legislature, chapter 43, p. 64, known as the parole statute, does not by its terms apply to conditional pardons; but if it be held that it is broad enough to include within its operation the granting of conditional pardons, and to limit and restrain the power of the Governor to grant conditional pardons to prisoners who have been sentenced for a life term, then it must be held to be an unconstitutional infringement of the exclusive right of the Governor to grant conditional pardons.

Statement: We deem it not improper to say that it was contended by the state on the hearing in the trial court, in substance, that the instrument granted by the Governor to the relator was in effect a parole, and that said instrument was governed by the act of the Thirty-Second Legislature, chapter 43, p. 64, relating to paroles, and that therefore, since the relator was a life prisoner, the Governor had no authority to release him or to grant him a conditional pardon. In other words, it was contended in substance that the said enactment by the Legislature above referred to is a valid exercise of legislative power and destroyed any power theretofore existing in the Governor to grant to life prisoners instruments similar to the one granted to the relator.

It will be noted from the statement of facts that the instrument granted relator by the Governor purports upon its face to be a conditional pardon and is so styled by the Governor, the condition of same being stated, and it is nowhere referred to by him as a parole.

It will be also observed that, in granting the relator this instrument, the Governor did not undertake to follow any of the provisions of said act to paroles, the said instrument not purporting to have been granted by the Board of Prison Commissioners.

Authorities: Acts 32 Legislature, c. 43, p. 64; article 4, § 11, State Constitution; article 2, § 1, State Constitution; Snodgrass v. State, 150 S. W. 162, 178, 41 L. R. A. (N. S.) 1144; State v. Nichols, 24 Ark. 74, 7 Am. Rep. 600; all authorities cited under last preceding proposition; Territory v. Richardson, 9 Okl. 579, 60 Pac. 244, 49 L. R. A. 440; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366.

Remarks: The granting of a pardon is an act of grace, according to all of the authorities, and the source of...